Pointe West Center, LLC v. It's Alive, Inc. and Shamil Qureshi, Individually, and as Agent For, It's Alive, Inc.

• Court: Court of Appeals of Texas
• Decided: February 27, 2015
• Docket: 01-14-00779-CV
• Status: Published

Opinion

ACCEPTED 01-14-00779-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 2/27/2015 2:09:06 PM CHRISTOPHER PRINE CLERK

NO. 01-14-00779-CV

In the Court of Appeals FILED IN First Judicial District of Texas 1st COURT OF APPEALS HOUSTON, TEXAS Houston, Texas 2/27/2015 2:09:06 PM ___________________________________CHRISTOPHER A. PRINE Clerk POINTE WEST CENTER, LLC Appellant,

vs.

IT’S ALIVE, INC. AND SHAMIL QURESHI Appellees/Cross-Appellants, __________________________________________________________________

Appeal from County Civil Court at Law No. 1 Harris County, Texas Cause No. 1022800 __________________________________________________________________

APPELLEES/CROSS-APPELLANTS’ FIRST MOTION FOR EXTENSION OF TIME FOR THIRTY DAYS TO FILE BRIEF __________________________________________________________________

To the Honorable Court of Appeals:

It’s Alive, Inc. and Shamil Qureshi, Appellees/Cross-Appellants ask the

Court to grant an extension of time of thirty days to file their Cross-Appellants’

Brief. This is the First Motion to Extend Time for Filing their Brief filed on behalf

of these parties.

1 1. Appellant is Pointe West Center, LLC (“Pointe West”).

Appellees/Cross-Appellants are It’s Alive, Inc. and Shamil Qureshi (hereinafter

referred to as “It’s Alive and Qureshi”)

2. The Trial Court (Harris County Civil Court at Law No.1) signed the

Final Judgment on June 18, 2014. The Final Judgment awarded Appellant

damages in the amount of Fifteen Thousand Dollars ($15,000.00) for damages to

the leased premises by It’s Alive. The Judge refused to grant Appellant’s Motion

for Judgment N.O.V. to award Appellant damages of an additional Five Thousand

Dollars ($5,000.00) as holdover rent and failed to award Appellant attorney’s fees

of approximately Fifty Thousand Dollars ($50,000.00).

3. After the Appellant’s Motion for Judgment N.O.V. and Motion for

Reconsideration were denied, Pointe West filed its Notice of Appeal on September

17, 2014.

4. On September 23, 2014, It’s Alive and Qureshi filed their notice of

appeal. This notice of appeal was timely pursuant to TRAP 26.1(d) because the

Notice of Appeal was filed within fourteen days after the Appellant Pointe West

Plaintiff filed its Notice of Appeal. At trial It’s Alive and Qureshi had moved

for an instructed verdict on the basis that Pointe West had not presented legally

sufficient evidence of its reasonable cost of repair damages and therefore no

award of damages should have been entered in favor of Pointe West. It’s Alive

2 and Qureshi have filed their cross-appeal contesting the award of damages in

the Judgment to Appellant.

5. On February 25, 2015, the Court of Appeals granted Pointe West’s

motion to extend the time for the filing of its Appellant’s Brief to February 23,

2015. As a result, It’s Alive and Qureshi’s Appellees’ Brief is due March 25,

2015.

6. Appellees’ counsel had intended to raise Appellees’ cross-appeal

issues in their appeal by cross-points. However, it is not clear to Appellees’

counsel whether these issues should be raised in Appellees’ brief as cross-points or

whether these issues should be raised in a separate brief as Cross-Appellant. In

Byrd v. Estate of Nelms, 154 S.W.3d 149, 165 (Tex. App.—Waco 2004, pet.

denied) the Court of Appeals noted that the Texas Rules of Appellate Procedure do

not clearly delineate when a cross-appellant must file its brief raising issues on a

cross-appeal. The Court of Appeals noted that if both parties had presented

themselves as appellants it would have presented the possibility of confusion with

respect to the references to the parties in the opinion. The Court of Appeals

decided to exercise their discretion and allow the appellee in that case to have its

cross-appeal point to be considered by cross-point in the appellee’s brief.

7. Out of an abundance of caution, It’s Alive and Qureshi request that

the time for filing Appellees/Cross-Appellants’ Brief on its appeal be extended by

3 thirty days so that Appellees/Cross-Appellants’ Appellees’ Brief and Cross-

Appellants’ Brief would be due at about the same time. Alternatively, if the Court

of Appeals determines that Appellees/ Cross-Appellants should include their cross-

appeal issues as cross-issues in its Appellees’ Brief, then Appellees/Cross-

Appellants will file one brief on or before March 25, 2015.

Appellees/Cross-Appellants request that the Court of Appeals grant this

Motion to Extend Time for filing of Appellees/Cross-Appellants’ Appellants’ Brief

until March 25, 2015, or alternatively, order that Appellees/Cross-Appellants may

raise their cross-appeal points as cross-points in their Appellees’ Brief, or for such

other and further relief to which they may be entitled.

Respectfully submitted,

DUNN, NEAL & GERGER, L.L.P.

By: ____/s/ James A. Dunn _____________ James A. Dunn Texas Bar No. 06244800 3006 Brazos Street Houston, Texas 77006 Tel.: (713) 403-7405 Fax.: (713) 960- 0204 Email: jdunn@dnglegal.com Attorney for Appellees/Cross Appellants

4 CERTIFICATE OF CONFERENCE

On February 24, 2015, Appellant’s Counsel, Spencer E. Dunn, indicated he was not opposed to this Motion to Extend Time for Filing Brief for thirty days.

___/s/ James A. Dunn ____________ James A. Dunn

CERTIFICATE OF SERVICE

I certify that on February 27, 2015, a true and correct copy of the foregoing instrument was served on Appellant’s counsel, Spencer E. Dunn, 4669 Southwest Freeway, Suite 760, Houston, Texas 77027, by electronic service through the e- filing case manager in accordance with the Texas Rules of Civil Procedure.

______/s/ James A. Dunn___ James A. Dunn